A-10974, OCTOBER 5, 1925, 5 COMP. GEN. 231

A-10974: Oct 5, 1925

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1925: I HAVE YOUR LETTER OF AUGUST 21. THE BOARD OF CONSULTING ENGINEERS IN QUESTION IS DESIRED IN CONNECTION WITH THE CONSTRUCTION OF A DAM ACROSS THE CANYON OF THE GILA RIVER NEAR SAN CARLOS. 000 WAS APPROPRIATED AND MADE IMMEDIATELY AVAILABLE BY THE ACT OF MARCH 3. WAS ON THE RATE OF COMPENSATION FOR THE ACTUAL TIME SERVED. A FLAT RATE FOR A SPECIFIC JOB IS APPLICABLE ONLY FOR WHAT IS TERMED NONPERSONAL SERVICES NECESSITATING THE FURNISHING OF BOTH PERSONAL SERVICES AND MATERIALS OR SUPPLIES TO COMPLETE THE WORK. MAY NOT BE USED FOR EMPLOYMENT OF PERSONAL SERVICES WHERE NO MATERIAL OR SUPPLIES ARE NECESSARY TO BE FURNISHED. I NOTE YOUR STATEMENT THAT TWO OF THE ENGINEERS CHOSEN TO SERVE ON THE BOARD HAVE REFUSED BECAUSE OF THE MAXIMUM RATE OF COMPENSATION OF $20.83 1/3 PER DAY.

A-10974, OCTOBER 5, 1925, 5 COMP. GEN. 231

CLASSIFICATION OF CIVILIAN EMPLOYEES - COMPENSATION OF CONSULTING ENGINEERS OF THE INDIAN FIELD SERVICE THE COMPENSATION OF CONSULTING ENGINEERS ENGAGED IN CONNECTION WITH THE CONSTRUCTION OF THE COOLIDGE DAM UNDER THE INDIAN FIELD SERVICE MAY NOT EXCEED THE RATE OF COMPENSATION OF $7,500 PER ANNUM, OR $20.83 1/3 PER DAY; NOR MAY CONTRACTS FOR THE PERSONAL SERVICES OF SUCH ENGINEERS BE EXECUTED ON THE BASIS OF A FLAT RATE OF $2,000 PER ANNUM FOR NOT TO EXCEED 20 DAYS' SERVICE PER YEAR. THE PROVISION OF SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, PROHIBITS THE USE OF THE FUNDS APPROPRIATED FOR THE CONSTRUCTION OF THE COOLIDGE DAM FOR THE PAYMENT OF SALARIES OF A BOARD OF CONSULTING ENGINEERS AS SUCH, REGARDLESS OF THE RATE OF COMPENSATION THAT MAY BE PAID TO ANY INDIVIDUAL MEMBER OF THE BOARD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, OCTOBER 5, 1925:

I HAVE YOUR LETTER OF AUGUST 21, 1925, REQUESTING DECISION WHETHER CONTRACTS FOR PERSONAL SERVICES OF MEN TO CONSTITUTE A BOARD OF CONSULTING ENGINEERS MAY BE EXECUTED PROVIDING FOR "* * * A FLAT RATE OF $2,000 PER ANNUM WITH THE UNDERSTANDING THAT THE MEMBERS OF THE BOARD WOULD BE AVAILABLE WHENEVER CALLED UPON BUT THAT THEY WOULD NOT BE REQUIRED TO RENDER SERVICES IN EXCESS OF 20 DAYS PER YEAR * * *.'

THE BOARD OF CONSULTING ENGINEERS IN QUESTION IS DESIRED IN CONNECTION WITH THE CONSTRUCTION OF A DAM ACROSS THE CANYON OF THE GILA RIVER NEAR SAN CARLOS, ARIZ., AUTHORIZED BY THE ACT OF JUNE 7, 1924, 43 STAT. 475, WITH A MAXIMUM COST OF $5,500,000. OF THIS AMOUNT $450,000 WAS APPROPRIATED AND MADE IMMEDIATELY AVAILABLE BY THE ACT OF MARCH 3, 1925, 43 STAT. 1152, FOR COMMENCEMENT OF CONSTRUCTION WORK ON THIS DAM "TO BE HEREAFTER KNOWN AS THE COOLIDGE DAM.'

YOU SUGGEST THE PROPOSED FORM OF CONTRACT FOR PERSONAL SERVICES OF THE CONSULTING ENGINEERS IN ORDER TO OVERCOME THE LIMITATION ON THE RATE OF COMPENSATION THAT MAY BE PAID FOR PERSONAL SERVICES IN THE FIELD UNDER THE PROVISIONS OF THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED BY THE ACT OF JANUARY 22, 1925, 43 STAT. 764, VIZ, $7,500 PER ANNUM, OR $20.83 1/3 PER DAY. DECISION OF JULY 29, 1925, 5 COMP. GEN. 73, AND CASES THEREIN CITED.

THE LIMITATION OF $7,500 PER ANNUM, OR $20.83 1/3 PER DAY, WAS ON THE RATE OF COMPENSATION FOR THE ACTUAL TIME SERVED. A FLAT RATE OF $2,000 PER ANNUM FOR A MAXIMUM OF 20 DAYS' SERVICE DURING A YEAR WOULD BE AT A MINIMUM RATE OF $100 PER DAY, AND AS A GENERAL RULE FOR FIXING COMPENSATION OF FIELD EMPLOYEES WOULD NOT BE AUTHORIZED. CONTRACTS FOR PERSONAL SERVICES EXCLUSIVELY, IN CONNECTION WITH A SPECIFIC GOVERNMENT PROJECT, SUCH AS THAT HERE INVOLVED, MAY NOT BE ENTERED INTO ON THE BASIS OF A FLAT RATE FOR THE PROJECT OR ON SUCH A BASIS AS PROPOSED. A FLAT RATE FOR A SPECIFIC JOB IS APPLICABLE ONLY FOR WHAT IS TERMED NONPERSONAL SERVICES NECESSITATING THE FURNISHING OF BOTH PERSONAL SERVICES AND MATERIALS OR SUPPLIES TO COMPLETE THE WORK, AS, FOR INSTANCE, SPECIFIC JOBS OF ALTERATIONS OR REPAIRS, SUCH AS MAY BE PROCURED BY CONTRACT AFTER ADVERTISING AND OPEN COMPETITION. THIS FORM OF CONTRACT, HOWEVER, MAY NOT BE USED FOR EMPLOYMENT OF PERSONAL SERVICES WHERE NO MATERIAL OR SUPPLIES ARE NECESSARY TO BE FURNISHED, BUT THERE MUST BE FIXED A SPECIFIC RATE OF COMPENSATION FOR THE TIME ACTUALLY SERVED.

I NOTE YOUR STATEMENT THAT TWO OF THE ENGINEERS CHOSEN TO SERVE ON THE BOARD HAVE REFUSED BECAUSE OF THE MAXIMUM RATE OF COMPENSATION OF $20.83 1/3 PER DAY. I NOTE ALSO THE STATEMENT THAT IT WOULD BE POSSIBLE TO SECURE THE SERVICES OF CONSULTING ENGINEERS AT THAT RATE OF COMPENSATION BUT THAT THE ADMINISTRATIVE OFFICERS OF THE INDIAN SERVICE DOUBT THE QUALIFICATIONS OF SUCH MEN. WHILE SUCH MATTERS MAY PERHAPS BE DIFFICULTIES FOR ADMINISTRATIVE SOLUTION, THEY ARE NOT CONTROLLING IN THE CONSTRUCTION OF LEGISLATIVE ENACTMENTS. THE MAGNITUDE, CHARACTER, AND IMPORTANCE OF THE PROPOSED STRUCTURE INVOLVING A TOTAL EXPENDITURE OF SUCH A LARGE SUM AS $5,500,000 SHOWS THAT THE PERIOD FOR COMPLETION WILL BE EXTENSIVE AND THAT PERSONAL SERVICES EMPLOYED IN CONNECTION THEREWITH COULD NOT GENERALLY BE CONSIDERED AS TEMPORARY SO AS TO JUSTIFY EXCEPTING THE EMPLOYMENT OF INDIVIDUAL CONSULTING ENGINEERS FROM THE PROVISIONS OF THE ACT OF DECEMBER 6, 1924, AS EXTENDED BY THE ACT OF JANUARY 22, 1925.

ACCORDINGLY, THE MAXIMUM RATE OF COMPENSATION OF INDIVIDUAL CONSULTING ENGINEERS, EMPLOYED PERMANENTLY IN CONNECTION WITH THE CONSTRUCTION OF THE COOLIDGE DAM, MAY NOT EXCEED $7,500 PER ANNUM, OR $20.83 1/3 PER DAY.

IN VIEW OF THE PROVISIONS FOUND IN THE BASIC ENACTMENT, I AM INCLINED TO THE VIEW THAT TEMPORARY EMPLOYMENT OF A CONSULTING ENGINEER, OTHER THAN THOSE IN THE GOVERNMENT SERVICE, MIGHT BE AUTHORIZED DURING SUCH AN EMERGENCY IN THE COURSE OF CONSTRUCTION AS TO RENDER HIS TEMPORARY SERVICES ABSOLUTELY NECESSARY, WHOSE COMPENSATION FOR THE SHORT PERIOD SERVED BY HIM WOULD NOT NECESSARILY BE LIMITED TO $20.83 1/3 PER DAY BUT COULD BE FIXED BY YOU IN ADVANCE OF THE EMPLOYMENT AT A REASONABLE SUM. SEE ALSO 4 COMP. GEN. 947.

SECTION 9 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1027, PROVIDES AS FOLLOWS:

THAT HEREAFTER NO PART OF THE PUBLIC MONEYS, OR OF ANY APPROPRIATION HERETOFORE OR HEREAFTER MADE BY CONGRESS, SHALL BE USED FOR THE PAYMENT OF COMPENSATION OR EXPENSES OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, OR ANY MEMBERS THEREOF, OR FOR EXPENSES IN CONNECTION WITH ANY WORK OR THE RESULTS OF ANY WORK OR ACTION OF ANY COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY, UNLESS THE CREATION OF THE SAME SHALL BE OR SHALL HAVE BEEN AUTHORIZED BY LAW; NOR SHALL THERE BE EMPLOYED BY DETAIL, HEREAFTER OR HERETOFORE MADE, OR OTHERWISE PERSONAL SERVICES FROM ANY EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT IN CONNECTION WITH ANY SUCH COMMISSION, COUNCIL, BOARD, OR OTHER SIMILAR BODY.

NO SPECIFIC STATUTORY AUTHORITY HAS BEEN GRANTED FOR THE CREATION OF A BOARD OF CONSULTING ENGINEERS IN CONNECTION WITH THE CONSTRUCTION OF THE COOLIDGE DAM. IN THE ABSENCE THEREOF, THE QUOTED PROVISION OF LAW, WHICH IS IN FORCE AS ORIGINALLY ENACTED, PROHIBITS THE USE OF THE FUNDS APPROPRIATED FOR THE CONSTRUCTION OF THE COOLIDGE DAM FOR THE PAYMENT OF SALARIES OF A BOARD OF CONSULTING ENGINEERS AS SUCH, REGARDLESS OF THE RATE OF COMPENSATION PAID TO THE INDIVIDUAL MEMBER OF THE BOARD. 12 MS. COMP. GEN. 1682; 17 ID. 1377; 44 ID. 67.